Chapter 8
Amendments affecting the conduct
of an investigation or review
8.1
This chapter examines the amendments proposed by the bill which will
affect the conduct of an investigation or review. Fundamentally, the
functionality of these amendments is restricted by the 155 day timeframe
within which Customs is required by law to undertake an investigation. This
overall timeframe can only be extended once by the Minister. Given that Customs
needs to verify all information it receives as part of its investigation, and
offer opportunities for other affected parties to defend their case, this could
put further pressure on an already constrained system. It could also lead to
further confusion surrounding Customs' final decisions, and increased risk of
litigation.
8.2
Without substantial improvements to the resourcing of Customs, these and
potentially other amendments to Australia's anti-dumping and countervailing
administrative framework would fail to reduce the burden on users of the system
and improve the system as a whole.
8.3
The committee made recommendations in chapter 4 that looked specifically
at these resourcing and time constraints (recommendations 1 and 2).
Recommendations into each of the amendments relating to changes to information
requirements are made below.
Allowing new or updated information to be considered during the investigative
& review stages
8.4
Under the bill, the CEO and the TMRO must have regard 'to any new or
updated information that is provided...by an interested party that reasonably
could not have been provided earlier'. [1]
8.5
The amendments seek to allay industry frustrations with the anti-dumping
and countervailing system, which imposes tight timeframes for the provision of
information to Customs, allows the CEO to disregard information that is
provided after the closing date for submissions has passed, and requires that the
TMRO only consider information that was before the CEO and the Minister at the
time of the investigation. This has resulted in the inability for new or
updated information to be provided at various stages during the investigation
process, and made it more difficult to prove material injury was being
sustained by the industry:
There is an option to pursue errors of law through the
federal court, but this is limited and does not permit review of the merits of
the finding. Some mechanism needs to be provided to enable representations
outside a Federal Court appeal of errors of law.[2]
8.6
However, Customs noted that, in practice:
Acceptance of submissions after the cut-off date is a common
occurrence in relation to all interested parties (e.g. exporters, importers,
industry). Late submissions have only been rejected where they would impact
negatively on the ability to issue a Statement of Essential Facts, make a
recommendation to the Minister, or complete other required processes within the
required timeframes.[3]
Does the amendment achieve its
objective?
8.7
Australian Paper stated that the amendments had the 'potential to reduce
the time required to lodge an application for measures since the applicant will
have the ability to lodge further information as it comes to hand (often slowly
from overseas sources)'.[4]
8.8
Others disagreed. For example, JELD-WEN did not support the proposed
amendments as they defeated the purpose of review by the TMRO of the Minister's
decision, which was 'based on information before the Minister at the time he or
she made the reviewable decision. In effect,...[the amendment] extends the
investigation to a time after [emphasis added] the Minister has made a
decision'.[5]
Interaction with other sections of
the Act
8.9
Customs was also unclear as to how these mandatory requirements would
interact with other subsections, including 269TDAA(3) and 269TEA(4), which
state that the CEO is not obliged to consider late submissions if to do so
would prevent the timely publication of the statement of essential facts or
timely preparation of the report to the Minister. It would also be difficult
for the CEO, in Customs' view, to determine whether information 'reasonably
could not have been provided earlier'.[6]
8.10
Moulis Legal pointed out that while investigating authorities need to
allow applicants due process, it may result in insufficient time for affected
parties (Australian importers and exporters of goods into Australia) to defend
themselves. This is because 'the prospect that interested parties might not be
given adequate opportunity to defend their interests in the case of
late-submitted information is higher than in the case of information submitted
at an earlier stage of the investigation'.[7]
8.11
Customs noted in its submission to the 2009 Productivity Commission's
inquiry that the amount of time required for an investigation is:
...dependent on many factors including the number of
interested parties, number of countries involved, complexity of issues...and
available resources... In the period July 1999 to May 2009 Customs...undertook
69 investigations. Of these 28 were completed within the 155-day
timeframe. The remaining 41 were extended by an average of 57 days.[8]
8.12
Consequently, it appears likely that the amendment, in its current form,
could result in further cases where Customs would request extensions of the
review timeframes, contrary to the aim of the amendment.
Conformity with WTO obligations
8.13
From a WTO-compliance perspective, the Department of Foreign Affairs and
Trade (DFAT) was concerned about the consistency of the amendment with Article
6.4 of the AD Agreement and Article 12.3 of the SCM Agreement, which require
investigative authorities 'on request, [to] provide opportunities for all
interested parties to meet those parties with adverse interests, so that opposing
views may be presented and rebuttal arguments offered'; and that 'the authorities shall whenever
practicable provide timely opportunities for all interested parties to see all
information that is relevant to the presentation of their cases, that is not
confidential...and that is used by the authorities in an anti-dumping
investigation, and to prepare presentations on the basis of this information'.[9]
8.14
DFAT also noted that allowing submission of new or updated information
later in the investigative and review process raised other WTO concerns:
Trading partners would likely argue that if the TMRO (during
review) and/or Customs...(during a subsequent reinvestigation) considered new
or updated information then they should be seen as still conducting the initial
investigation. They would likely argue that the entire process (i.e. the
original investigation, the TMRO review and Customs[']...subsequent
reinvestigation) should all be completed within the WTO timeframe. Given the
time this process takes, and the additional time that would be added by
considering new or updated information, it is quite possible that the time
taken for the investigation would exceed the 12-18 months set down by WTO
rules.[10]
8.15
On 2 March 2011, the Customs Amendment (Anti-dumping Measures) Bill 2011
was introduced into the House of Representatives by the government. Among other
things, the bill seeks to introduce a new subparagraph 269ZD(2)(a)(iii) into
the Act. This amendment would require the CEO, when formulating the Statement
of Essential Facts as part of a review under Division 5, to have regard to any
submissions that relate generally to the review but are received after the
deadline for submissions (day 40 of the review), if doing so 'would not prevent
the timely placement of the statement of essential facts on the public record'.
Committee view
8.16
The committee is concerned that the ultimate workability of this
amendment rests on the introduction of the rebuttable presumption of dumping.
Otherwise, this amendment introduces additional resource pressures on both
Customs and the TMRO which, without expanding the investigative timeframes or
increasing resources, would result in additional administrative burdens.
8.17
The changed role of the TMRO under the amendments makes the boundaries
between investigation and review unclear, and introduces business uncertainty.
Applicants would be unaware of the costs of responding to new or updated
information both at the investigation and review stage. The impact on the
timeliness of the investigation and review from considering additional
information also remains unclear. Consequently, the amendments introduce
administrative and time costs on both users and administrators of the system.
8.18
In addition, the amendments are inconsistent with sections of 269TDAA
and 269TEA of the Act, and risk contravening Australia's international
obligations under the AD Agreement and SCM Agreement.
8.19
The committee considers, however, that the amendment proposed by the
Customs Amendment (Anti-dumping Measures) Bill 2011 that would require the CEO,
where circumstances allow, to have regard to submissions received after the
statutory deadline when formulating the Statement of Essential Facts for a
review under Division 5, would be an improvement to that process. The committee
believes this amendment should similarly be made to the other investigative and
review processes related to anti-dumping and countervailing measures.
Recommendation 7
8.20
The committee recommends that the Senate reject the amendments
proposed by the bill to allow new or updated information to be considered
during various stages of an investigation or review.
8.21
The committee recommends that Part XVB of the Customs Act 1901
be amended to require that, when the CEO of Customs is formulating the
statement of essential facts as part of an investigation under Division 2,
review under Division 5 or continuation investigation under Division 6A, he or
she must have regard to any other submission received by Customs relating
generally to the investigation or review if, in the CEO’s opinion, having
regard to the submission would not prevent the timely placement of the
statement of essential facts on the public record.
Consulting industry experts during investigative and review stages
8.22
The bill introduces a number of amendments[11]
to the Act that require that Customs must consult with persons with expertise
in the relevant Australian industry and related Australian industries during
the investigative and review stages.
8.23
It also provides timeframes for consultation with industry experts for
the review stages. During a review, it prescribes that Customs must consult
with industry experts within 20 days of Customs receiving an application for review
of anti-dumping or countervailing measures. During a review for the
continuation of anti-dumping or countervailing measures—where measures are due
to expire—the bill prescribes that Customs must consult with industry experts
within a period of 60 days.
8.24
The AWU considered these amendments to be beneficial:
The use of industry experts, accounting experts and other
skilled resources, which have not been available to Customs, would also allow a
better understanding of the supply chain, the values created and profit
derivation, would lead to more robust outcomes, rather than looking at simple
price measures and comparisons.[12]
8.25
The AIG was also supportive:
We think that there should be the ability to consult
independent experts from outside Customs. Basically, there is a strong concern
at the moment that relative industry expertise in either the application of the
investigation or the review process is not taken into account. We would very
much support the provision or the ability for there to be consultation with
outside industry experts as part of the investigation review process. This
could be with people who not only are Australian but also are offshore, if they
have relevant skills, expertise or knowledge to bring to the table. What we
think that does is to bring forward outside views to allow Customs to maybe
think much more widely and perhaps globally in how they manage these cases and
these claims as they go forward and to seek other input from people who may
have information to bear.[13]
8.26
While the Law Council of Australia (LCA) and Law Institute of Victoria (LIV)
supported the proposed amendments, they clarified that:
...consideration should be given to defining “related
Australian industries” to include those Australian industries that use like
goods as inputs to manufacture. The LCA and LIV reiterate their concern that
such consultants be required to be independent of the parties to the
investigation in question and that they not only have the requisite expertise
but also appropriate qualifications.[14]
Workability of the amendment
8.27
Customs strongly opposes these amendments. Aside from stating that
industry consultation already occurs, Customs asserted that the amendments may
result in significant cost implications and increased risk of litigation under
the Administrative Decisions Judicial Review Act 1977 on the grounds of
failure to take into account a relevant consideration.[15]
8.28
The major concern for Customs was the lack of clarity in the amendments
over the requisite qualifications or experience a person would need to be
considered an industry expert, how such experts would be identified or engaged, and how to deal with conflicting advice given by different
experts.[16]
8.29
Customs was also concerned about the practicality and purpose of the
amendment to consult with industry experts within 20 days of Customs receiving
an application for review of anti-dumping measures.[17]
Conformity with WTO obligations
8.30
DFAT raised similar concerns to those identified under the amendments to
allow new or updated information during the investigation/review stage. Again,
it noted potential discrepancies between the amendments and Australia's WTO
obligations.
Committee view
8.31
The specific nature of many of the goods subject to anti-dumping and
countervailing measure investigations often requires industry expertise to
assist in determining the variable factors that Customs needs to establish
before it can make a determination of whether material injury is being caused
by dumping or subsidisation. Consequently, the committee supports greater
utilisation of industry experts during an investigation period.
8.32
The low number of industry consultations (see Chapter 4) that Customs
has undertaken since 2008-09 (10 per cent of all new investigations) warrants
further investigation. A legislative requirement, however, for Customs to
consult with experts as part of all investigations and reviews could result in
unnecessary costs. It is possible that there may be situations where the
information available to Customs is sufficient for it to not consult with an
expert, but Customs would still be required to do so as a result of this
provision. The committee considers the decision whether to engage an expert as
part of a particular investigation or review should be left to Customs'
discretion.
8.33
The committee believes that in their current form, the amendments do not
adequately define or provide guidance for Customs or the TMRO to identify who
the industry experts and 'related industries' are and how to deal with cases of
conflicting advice. In addition, the requirement for the TMRO to consider
additional information which was not available to the CEO, such as that
supplied by experts, is beyond the TMRO's current function as an avenue for
administrative appeal. Also, the TMRO may not have the same level of expertise
or corporate knowledge as Customs in understanding a specific industry, or
identifying industry experts, as section 269ZO of the Act requires that the
TMRO (although eligible for reappointment) only hold office for a period not
exceeding three years. This could create further confusion and inconsistencies
between the conduct of the investigation and in subsequent reviews undertaken
by the TMRO.
Recommendation 8
8.34 Pursuant to recommendations 1 and 2, the committee recommends that the
Government examine the underlying reasons for the low level of consultation
with industry experts, and how this affects the outcome of investigations of
the Australian Customs and Border Protection Service.
Forecasting,
potential impacts and economic factors that may be considered
8.35
The bill makes a number of changes to Part XVB of the Act related to the
matters the CEO considers at various stages of an anti-dumping and
countervailing investigation, and the economic factors the Minister may have
regard to when determining material injury.
8.36
The bill would amend the list of economic factors outlined in section
269TAE of the Act that the Minister may have regard to when determining whether
material injury to an Australian industry has been caused or is threatened, by
making the following changes:
- As part of the factor regarding the number of persons employed,
adding "the impact on jobs".
- As part of the factor regarding investment in the industry,
adding "impact on capital investment in the industry".
8.37
Currently, subsections 269TD(2) and 269TDAA(2) of the Act require, in
deciding whether to make preliminary affirmative determination and in
formulating the statement of essential facts, that the CEO:
a) must have regard to:
i) the application concerned; and
ii) any submissions concerning publication of the notice that are received
by Customs within 40 days after the date of initiation of the investigation;
and
b) may have regard to any other matters that the CEO considers relevant.
8.38
Through amendments to both subsections noted above, the bill expands the
factors that the CEO 'must have regard to' to include:
- any potential impacts forecast by the CEO in relation to the
economic condition of the relevant Australian industry and related Australian
industries, including but not limited to employment (including the multiplier
effect), capital investment and market operation; and
- any information and analysis provided by person with expertise in
the relevant Australian industry and related Australian industries as a
consequence of consultations under paragraph 269TC(4A)(b).
Clarity of amendments
8.39
The LCA and LIV had reservations about the reference to the 'multiplier
effect', considering it to be a:
...general economic term but its precise effect and impact
depends on a number of factors that may vary according to the circumstances. It
is unclear how this would operate in practice. The LCA and LIV believe this
proposed amendment should be deleted or its operation be clarified.[18]
8.40
DFAT was unclear as to the meaning of 'market operation', and was
'unable to form a view on the WTO consistency of its inclusion'.[19]
Do the amendments achieve their
objective?
8.41
Customs noted that it is unclear how these amendments would affect
existing administrative practice. In its submission, it noted that during its
conduct of an investigation, it considers:
...price, volume and profit effects as well as other economic
factors, including investment in the industry in assessing the extent and
causes of injury to Australian industry... In addition to examining the number
of persons employed, Customs and Border Protection will also consider the
nature of the employment (eg hours worked and whether there has been a shift
from full-time to part-time employment).[20]
8.42
It pointed to a number of cases over the last five years which highlighted
its consideration of these factors, including:
- hollow structural sections from China—reduced return on
investment, reduced attractiveness for reinvestment;
- demountable truck wheel rims from China—reduced return on
investment, reduced capacity utilisation;
- processed dried currants from Greece—reduced return on investment
and reduced attractiveness for re-investment for dried currant growers; and
- greyback cartonboard from Korea—decrease in return on investment.[21]
8.43
The issue for many submitters, however, was that it was unclear whether
Customs considered these factors in each case it investigated. This was
highlighted in an exchange between Senator Cameron and representatives from
JELD-WEN:
Senator CAMERON:... One of the provisions of
the existing act that would be affected by the amendment is 269TAE(3)(m), which
is the ability of persons engaged in the industry to raise capital in relation
to the production or manufacture of goods of that kind or like goods and
investment in industry. So it says you can raise these issues if it has these
effects. The Customs and Border Protection submission this morning says that
when they conduct an investigation they look at price, volume, profit effects
and other economic factors. You have raised on a number of occasions the
Australian workers that you employ. Are they simply another economic factor in
this legislation?
Dr Silberberg: I would like to know the instances where
Australian Customs has taken into account the flow-through effects of alleged
dumping. I think, in respect of the cases that JELD-WEN has participated in,
the scope of the investigation seems to be somewhat confined and does not take
into account, to my knowledge, impacts on employment in other sectors and
investments in capacity.[22]
8.44
Customs noted that all economic factors are considered when information
is available, consistent with Article 3.4 of the AD Agreement, which requires
an evaluation of the actual and potential effects on a range of factors.[23]
Conformity with WTO obligations
8.45
DFAT noted in its submission that 'to the extent that the amendments
require consideration of impacts on a "related Australian industry"
that does not come within the WTO definition of "domestic industry",
this would be inconsistent with Australia's WTO obligations'[24],
and by default, this would apply to consideration of a 'multiplier effect'
which may involve industries not covered in the WTO's definition of
"domestic industry".
8.46
Further, DFAT noted that Article 4.1 of the AD Agreement provides that
domestic industry 'shall be interpreted as referring to the domestic producers
as a whole of the like products or to those of them whose collective output of
the products constitutes a major proportion of the total domestic production of
those products'.[25]
Committee view
8.47
The committee believes that in their current form, the amendments do not
adequately define the new factors that the CEO must consider during an
investigation. This could create further confusion during the conduct of an
investigation and in subsequent reviews.
8.48
Customs has indicated that it considers all economic factors where
possible. The key, therefore, is for Customs to be transparent about the
methodology it has used during its investigation. This extends to which factors
were considered and the reasons for a determination that these factors do not
show that material injury has occurred.
Recommendation 9
8.49 The committee recommends that the Government require Australian Customs and
Border Protection Service (Customs) to:
- detail what economic factors were considered in its
determinations during its anti-dumping and countervailing investigations and
any subsequent review of its determinations;
- provide an explanation as to why it was unable to consider any
of these economic factors as part of its investigation; and
- provide reasons for its determination where economic factors
do not show that material injury or threat of material injury where dumping has
been proved. These provisions will enhance the transparency of Customs'
decisions, as well as allow interested parties the opportunity to better tailor
and substantiate their applications and in any subsequent reviews of Customs'
decisions.
Amendments to treatment of confidential information by the CEO and the
Minister
8.50
The bill introduces a number of amendments[26]
to the Act that affect the treatment of confidential information by both the
CEO and the Minister. These are discussed below.
Amendments to treatment of
confidential information by the Minister during his/her consideration of
anti-dumping and countervailing matters
8.51
A number of provisions under the Act[27]
exist currently that detail how the Minister (and the CEO) must treat
confidential information that was provided to ascertain the normal value,
export price or non-injurious price required to determine dumping margins/subsidisation.
Under subsection 269TG(3A):
If any person who has provided information to assist the Minister
to ascertain the normal value, export price or non-injurious price of goods
...claims, in writing, that the information is confidential or that the
inclusion in a notice under that subsection of that value or price would
adversely affect the person's business or commercial interests:
(a) in
accordance with subsection 269ZI(9) the Minister is not required to include in
the notice a statement of that value or price; but
(b) upon
request the CEO may notify that value or price to persons who, in the CEO's
opinion, would be affected parties in any review of the rate of interim duty
imposed on like goods to the goods to which the declaration relates.[28]
8.52
The bill repeals these paragraphs, instead substituting the following:
(a) in
accordance with subsection 269ZI(9), the Minister is not required to include in
the notice a statement of that value or price; and
(b) that
value or price must not be published in any other way.
8.53
Similar amendments were made in subsections 269TH(4), 269TJ(12) and
269TK(6).
8.54
The amendments were seen by some submitters as unnecessary, as
refraining from publishing commercially sensitive material already occurs in
practice. However, concerns were raised that the amendments in their current
form would result in decreased transparency of the process. For example, the International
Institute for Trade (IIT) noted that:
...in consideration of duty assessment applications, claims of
confidentiality or adverse business or commercial effects would be determined
by the person supplying the information. This may affect the transparency of
the process. Currently, the decision-maker [the Minister] forms an opinion on
adverse effect.[29]
8.55
Customs considered that the amendments would not provide natural justice
for importers, arguing that:
Customs...provides natural justice by disclosing details on
the level of anti dumping duties to bona fide importers. If these details were
not disclosed, importers would not be aware of their tax liability until after
importation, and would not know how the level of duty has been calculated.[30]
8.56
This was mirrored by the LCA's and LIV's stance, who questioned the
constitutionality of the amendment based on the grounds that:
The effect of the proposed amendments is not only to preclude
the Minister from disclosing confidential [information]... but also to preclude
the CEO from disclosing, upon request, such information to, for example an
importer of like goods... In short, this would preclude importers from
ascertaining the rate of tax being imposed on their imports. Such lack of
transparency is not acceptable and is of questionable constitutional validity.[31]
8.57
DFAT noted a discrepancy between the Explanatory Memorandum, which
suggested that what must not be published 'in any way' is the information
provided that assisted the Minister to ascertain the 'value', 'amount' and
price, and the actual amendments of the bill which suggested that it is the
'value', 'amount' and 'price' themselves that must not be published in any way.
8.58
DFAT clarified that the WTO agreements allow non-confidential summaries
of confidential information to be provided, which is the current practice in
Australia. The AD and SCM Agreements[32]
only provide for confidential information not to be summarised in such a
way only in 'exceptional circumstances' where 'information is not susceptible
of summary'. In this instance, parties must provide a statement outlining
reasons why summarisation is not possible. According to DFAT:
It is thus only in "exceptional circumstances" that
the obligation to publish information "in any ... way" can be avoided.
By instituting a blanket prohibition on publication "in any ... way",
these amendments would be inconsistent with Australia’s WTO obligations.[33]
Committee view
8.59
One of the critical and difficult issues for administering Australia's
anti-dumping system is balancing the confidentiality of information
received by Customs (from domestic producers, importers and exporters) and the
need for access to this information by the other parties involved in an
investigation or review.
8.60
The committee is concerned that the amendments to the treatment of
confidentiality by the CEO and the Minister would reduce the transparency,
equitability and accessibility of Australia's anti-dumping and countervailing
system. Coupled with the amendment which proposes to reverse the onus of proof,
it will place an even more significant and onerous burden on importers.
8.61
The committee further notes that there would be internal inconsistency
in the Act between the treatment of confidentiality during the Minister's
consideration of anti-dumping and countervailing matters and how Customs would
treat confidential information that is to be published on the public record.
This is because the bill does not amend subsection 269ZJ(5) of the Act, which
requires Customs to keep a public record during the investigation process.
8.62
There also appear to be inconsistencies with Australia's international
obligations under the WTO's AD and SCM Agreements. Consequently, the committee
does not support the amendment.
Amendments to treatment of
confidentiality by the CEO during his/her consideration of duty assessment
applications
8.63
Under paragraph 269X(3)(a) of the Act, where the CEO proposes to take
into account any relevant information that was not supplied to the CEO by the
applicant (i.e. information supplied by a third party), the CEO must:
...give the applicant a copy of the information that he or
she proposes to take into account unless, in the opinion of the CEO, the
provision of that information would adversely affect the business or commercial
interests of a person supplying the information.[34]
8.64
The bill repeals the paragraph, substituting instead:
(a)give
the applicant a copy of the information that he or she proposes to take into
account, unless the person supplying the information has claimed that the
information is confidential or that the provision of that information to any
other person would adversely affect the business or commercial interests of the
person supplying the information; or
(aa) if
paragraph (a) applies—give the applicant a summary of that information in
a form that allows a reasonable understanding of the information without
breaching that confidentiality or adversely affecting those interests;...
8.65
JELD-WEN, the LCA and the LIV supported the amendment, arguing that it
'enhanced transparency'.[35]
DFAT also commented that the amendment 'did not appear to raise any WTO
issues'.[36]
8.66
Customs, however, envisaged difficulties in administering the amendment,
as it could potentially require the CEO to produce non-confidential summaries
of third party information:
It is unclear whether the consent of the third party is
required (to confirm that the non-confidential summary does in fact not breach
the claimed confidentiality) and what happens if a non-confidential summary
cannot be agreed upon. It would be easier to administer a provision similar to
that in s.269ZJ(5), which would require the third party to provide the non-confidential
summary and give the CEO power to disregard the information if an adequate
non-confidential summary is not provided.[37]
8.67
However, Customs' suggestion does not address the underlying issue which
interested parties face when dealing with the consequences of information being
classified as confidential. If the CEO disregards information provided because
the third-party cannot provide a non-confidential summary, this may affect the
outcome of an investigation as it may reduce the evidence before the CEO which
could have led to a positive finding. As the CFMEU explained:
It is anticipated that providing the opportunity for counter
argument by the applicant, interested parties and industry experts of ‘commercial in confidence explanations’ by firms accused of dumping would void
the instance of unjust and incorrect findings being made...It would be
anticipated that such an amendment is consistent with attempting to overcome
the problem of inaccurate findings such as ‘no dumping’ or ‘no dumping causing
material injury’ being made.[38]
8.68
An alternative approach was proposed where certain professions could be
given access to information that is deemed confidential, provided they enter
into a legally enforceable confidentiality undertaking. JELD-WEN suggested this
may 'enhance the quality of decision making', but also would:
...cause both applicants and objectors to think very
carefully about the quality of the information that they submit to customs in
their submissions.[39]
Committee view
8.69
The committee is concerned the proposed amendment is problematic from an
administrative point of view as by requiring Customs to summarise third party
information, it increases the risk of information that a party considers was
commercial-in-confidence being published inadvertently.
8.70
However, there are legitimate reasons for ensuring that third-party
information be accessible where it is crucial to the investigation while still
protecting the confidentiality of the information.
Recommendation 10
8.71 The committee recommends that the Government consider introducing a
framework for certain professions to be able to access information supplied to
Customs and the Minister on a commercial-in-confidence basis, provided they
enter into a legally enforceable confidentiality undertaking.
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